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COMMENTS on Crowd Control Directive, June 2020 PORTLAND COPWATCH

Below are comments from Portland Copwatch (PCW) on the Crowd
Management/Crowd Control Directive #635.10

(  https://www.portlandoregon.gov/police/article/761519 ). We preface this
document by noting the high amount of attention that is finally being
paid to the important issues of police accountability and institutional
racism, and urging you to take action on these concerns in order to
build community trust. We commented on this policy in September 2017 and
March 2018, with very few of our comments leading to changes.
COMMENTS on Crowd Control Directive, June 2020

To Chief Lovell, Capt. Parman, Lieutenant Morgan, PPB Policy Analysts,
Compliance Officer/Community Liaison Team, Community Oversight Advisory
Board staff, US Dept. of Justice, Citizen Review Committee and the
Portland Police Bureau:

Below are comments from Portland Copwatch (PCW) on the Crowd
Management/Crowd Control Directive #635.10 (
 https://www.portlandoregon.gov/police/article/761519 ). We preface this
document by noting the high amount of attention that is finally being
paid to the important issues of police accountability and institutional
racism, and urging you to take action on these concerns in order to
build community trust. We commented on this policy in September 2017 and
March 2018, with very few of our comments leading to changes.

In those previous comments we noted that despite changes stating impact
and aerosol weapons are not to be used indiscriminately against crowds,
such weapons were used in then-recent protests. They have been used
indiscriminately again in the past two weeks of ongoing responses to the
death of George Floyd and the long and ongoing history of policing that
his death reflects.

We have heard the Portland Police Bureau (PPB) claim that tear gas was
not being used, and it was not being used indiscriminately. While many
of our comments to you are about the careful use of language,
institutionally speaking you should know well enough what the community
means. It does not matter if it was specifically "tear gas" or if
officers thought they were targeting specific individuals and not being
"indiscriminate"-- the chemical agents that were launched affected
people not engaged in criminal or threatening conduct, and you know that
is what people mean.

On that note, we strongly encourage the Bureau (and the media) to stop
referring to people who act as march monitors or who disagree with the
tactic of property damage as "self-policing." Community members are not
empowered to use violence including deadly force, nor to make arrests
which could lead to incarceration in a dehumanizing criminal justice
system. This is why someone created the bumper sticker that says
"Support the police: Beat yourself up"; policing is inherently a violent
institution.

We also recognize these comments are made in the context of demands for
rethinking exactly what police can and should do, if anything at all.
PCW's outlook continues to be that so long as there are police we need
to hold them accountable and stop them from harming our fellow community
members. So we urge you to adopt these changes, even if the PPB is
eventually dismantled or banned from providing public safety presence at
protests.

We also repeat what we wrote two years ago: "even when changes are made
that we can support, there needs to be evidence that they are being
enforced and officers are being held accountable for violating them."

Once again we note that the Citizen Review Committee (CRC) presented
recommendations to the Bureau on crowd control back in 2015, but those
were never fully addressed.

Finally, before we get into our specific comments, we once again note
that the comment period of 15 days is not sufficient for most
Portlanders, most advisory bodies, and may community organizations to
provide meaningful feedback.

These comments are separated into three levels of priority, generally in
the order they appear in the Directive under each section.

___High Priority Concerns:

* Non-Confrontational Stance Needs Clarification: In 2018, the call for
officers to maintain a "non-confrontational" presence was changed to a
"diplomatic" presence (Policy Section 5). We urge that both words be
used, and that language be added reminding officers that by showing up
in "riot gear" they can escalate a situation just by mere presence.

* Broad Policy Goals Act to Encourage Force: Policy Section 6 twice
includes the term "protect public safety and restore peace and order,"
bringing the problem of vagueness which could lead to over-policing
based on a subjective interpretation. Moreover, the entire Directive's
tone is still set by Procedure Section 1 talking about how Directive
1010.00 on Use of Force governs officer use of force. Directive 1010.00
itself begins with a section on de-escalation. That should be noted
before the words "use of force" are used in this Directive.

* Unlawful collection of information: The Bureau takes video for
"situational awareness" and turns it over to the City Attorney. ORS
181A.250 prohibits collecting OR maintaining information on people's
social, political or religious affiliations without reasonable suspicion
of criminal activity. Section 4.3 now allows live video feeds which are
not permitted to be recorded without authorization by the Incident
Commander. The policy explicitly says the authorization cannot be based
on monitoring the associations/views of the people. However, the fact
that a live video is being transmitted still seems to fall under the
statute's ban on "collecting information" whether or not it is retained.

* Conflicting Orders not Specifically Banned: Section 8 on Announcements
does not require officers ensure that conflicting commands (such as "get
off the street onto the sidewalk" /"get off the sidewalk into the
street") are not given. The closest the Directive comes is saying the
Incident Commander has to ensure announcements are "consistent" (Section
6.1.5), which could just mean they are ongoing.

* Calling Out Individuals: Section 8.2.2 explicitly calls for officers
using the loudspeaker system to "communicate targeted information to
specific individuals to provide direction." We noted this is an
intimidating tactic coming from the military grade Long Range Acoustic
Device (LRAD) now in use, and asked the Bureau to stop it. Instead, the
policy formalized the ability. This deserves much more discussion as
police will call out the names of people they know, but say "you in the
red sweatshirt" to others, creating, shall we say, unequal protection of
the law (see: Fourteenth Amendment).

* No Specific Limits on Violent Arrests: The Bureau still has not acted
to prohibit the use of violent arrests as we asked, leaving in place a
requirement to "consider" the "method of the arrest" (Section 12.2).
Moreover, the PPB did not make changes such as adding the level of
criminal behavior and likelihood of escalating tensions to the existing
consideration of "timing, location and method of arrest."

* Targeting Legal Observers: PCW recommended a policy against targeting
those observing police at demonstrations. Section 12.4 prohibits
arresting "media or legal observers... solely for their role in
observing, capturing, and/or reporting on demonstrations or events."
There are two caveats: (a) those observing must do so "in a safe manner
and in compliance with police orders," and (b) if observers do not
comply with "all police orders" they may be arrested. We're still not
sure this is contemplated by the First Amendment.

* Ensuring People Can Avoid Harm: Section 9.2.1 says that weapons cannot
be used unless there is an escape route available to the crowd. Such an
escape route, however, is not required when officers order a dispersal
(Section 9.1), and there is no requirement that those giving orders to
the crowd be aware of such an escape route (Section 8).

* Define Indiscriminate: Section 10.2 says officers can't "deploy
specialty impact munitions or aerosol restraints indiscriminately into a
crowd," but there is no definition for "indiscriminate." Any force used
against people who are not engaged in criminal conduct or threats to
persons means the PPB is engaging in collective punishment, which is
prohibited under international law.*-1

* Ban Use of Deadly Force and Other Weapons on Crowds: The use of deadly
force has not been prohibited in Section 10 despite suggestions from
PCW, the ACLU, the National Lawyers Guild (NLG) and Oregon Lawyers for
Good Government (OLGG). Nor has the Bureau prohibited use of "batons,
pepper spray, impact munitions, flash-bangs, tear gas, and bicycles" as
we asked.

* Force Reporting (not in Directive): The Bureau has still not
consolidated the multiple uses of force against crowds in quarterly
Force reports. Crowd force incidents are published in a separate section
at the end of annual Use of Force data reports, but not integrated with
the other data.*-2 We have asked before and ask again: why is force
against a protestor not counted as force? One answer might be that
including force at protests would vastly increase the number of people
subjected to force but not taken into custody. That is why the Bureau
should include these numbers, to take a deep examination of whether
officers are using too much force.

___Second Most Pressing Issues:

* Too Much Leeway in Defining Crimes: Policy Section 4 is too vague
where it lists crimes that are not protected by the First Amendment.
Echoing the items from the "Civil disturbance" definition it lists
"riot, disorder, interference with traffic, or other immediate threats
to public safety, peace or order." For an organization that allows
officers to point weapons at people when it's not likely they would be
justified in using those weapons, drive recklessly by ignoring traffic
signals and speed limits, engage with their electronic devices while
driving, harass people of color by patting them down during "mere
conversations" and countless other affronts to social norms, it is not
reasonable to use a blanket term like "disorder" without being more
specific.

* Assembly is a Constitutional Right: PPB says control tactics can be
used if there is a "civil disturbance" (Policy Section 6). The
definition sections explains a "civil disturbance" is "an unlawful
assembly that constitutes a clear and present danger of riot, disorder,
interference with traffic upon the public streets or when another
immediate threat to public safety, peace or order appears." It's not
clear exactly how "interference with traffic upon the public streets"
constitutes a threat to public safety. It's also not useful to
characterize an assembly of persons (guaranteed as a right in the First
Amendment) as "unlawful." In other words, the PPB is trying to say what
makes the assembly "unlawful" by giving examples, but using the word up
front implies the assembly itself is an unlawful act. The language is
also vague and over-broad.

* Sometimes, No Police Presence is "Needed": Where we asked the Bureau
to change its delineation of event types from "Planned demonstrations"
vs. "Spontaneous demonstrations" to "Coordinated with the Bureau" vs.
"Not coordinated with the Bureau," the Directive merely adds two
clarifying points to the "Spontaneous demonstrations" Section (4.2). It
now defines such demonstrations as "events that the Bureau learns of
with less than 24 hours notice" (4.2.1) and note that such events "can
be lawful and be facilitated with appropriate police response" (4.2.2).
We asked the Bureau to reinsert the words "or no police
response/assistance." We also asked the PPB to specifically state "The
Bureau will not take adverse action against a group because it has
refused to establish lines of communication with the Bureau." Neither of
these happened.

* Will Police Action Improve Outcomes?: Section 6.1 on the Incident
Commander says they should "consider what tactics are objectively
reasonable under the totality of the circumstances." PCW asked the PPB
to re-insert criteria from an older version including consideration of
whether police action will improve the outcome.

* Unlawful Detention: The Bureau modified Section 11.1 on detentions to
say officers may detain "individuals engaged in civil disturbance."
However, the PPB did not address our concern that the City says officers
"may" do so, since there's no requirement that the people had to have
committed any particular criminal act (other than failing to disperse).
Especially in light of the ACLU's previous lawsuit over this tactic, we
urge the Bureau to limit or eliminate the use of this tactic.

* Require Reports by End of Shift: The Section (13.4) requiring officers
who use force to file a report still does not set a deadline of the end
of their shift (as was in a previous version).

* Ban or Define When Kettling Can Be Used (not in Directive): There is
nothing in the Directive, including in Section 9 on "Crowd Dispersal,"
about the Bureau's ongoing tactic of "kettling" (boxing in) protestors,
despite our request. Perhaps Section 11.1 on detaining "individuals
engaged in civil disturbance" is supposed to cover that tactic.

* Limit Powers to Confiscate Items from Demonstrators (not in
Directive): The Bureau has been actively rounding up items they claim
are potential weapons, even those that are not listed under state law as
dangerous, despite the fact that an old part of the Directive allowing
them to "pre-emptively confiscate potential weapons" was cut from a
previous iteration.

* Address Specific Munitions (not in Directive): Also, even though they
have become ubiquitous in crowd control, the specific guidelines for use
of so-called "aerial distraction devices" (aka flash-bangs) and "rubber
ball distraction devices" (aka less-lethal grenades) are not addressed
directly in any Bureau policy. Directive 1010.00 on Use of Force,
Section 6.4.2 "Impact Munitions" is the closest we could find.

* Prohibit Political Profiling (not in Directive): There is still
nothing prohibiting officers from targeting individuals based on their
clothing or perceived political affiliations as both we and the Citizen
Review Committee suggested. The closest guideline is the one stating
officers have to articulate probable cause for an arrest (Section 12.3).
We note here that it's amusing Chief Outlaw sought to ban people wearing
masks at protests, when now it is a matter of public health and safety
that people should wear masks.

* Promptly Released Seized Property: There is nothing requiring the
prompt release of property confiscated at protests, also a CRC
recommendation that PCW supported.

____Third Tier, but Still Important Concerns:

* Better Phrasing for Letting the Community Organize on its Own: Policy
Section 5 directs police to "encourage and support participants' efforts
to monitor themselves in an attempt to limit member involvement." We
suggested this be changed to say "Be supportive of participants'
organizing to set guidelines on behavior" or similar language to not
seem so paternalistic.

* What is Property Damage?: Policy Section 5 also says police presence
is to be minimize "violence, injury or damage to property." While
minimizing violence and injury is a good goal, PCW has repeatedly asked
the Bureau to be clear what is meant by "damage to property." Some
believe that writing slogans on a sidewalk in chalk is a form of
"property damage," which is silly.

* Staring Over Your Shoulder: Policy Section 5 also continues to suggest
that officers' presence is partly to "encourage crowd self-monitoring"
which we compared to having your boss stand over your work area all day
while armed.

* It's Always a Choice: The Bureau still has not replaced the phrase
"when police response is necessary" to "when police choose to respond"
as we suggested (3.1.1).

* Cold Calling/Messaging is Big-Brothery: The Bureau directs officers to
contact event organizers and "engage in dialogue" (Section 3.1.1.1). The
Directive should address PCW's concern that a phone call, social media
message or other contact from police can be off-putting. Moreover,
laying out "expectations" is paternalistic. We continue to suggest that
police and the City post Frequently Asked Questions about guidelines for
demonstrations.

* Better Language on Protest Liaisons: In addition to "organizers" the
Directive describes "Person(s)-in-charge" as potential contacts for
police (Section 3.1.1.2). However, the PPB did not change the term
"person-in-charge" to "liaison" which we pointed out allows organizers
to assign someone not necessarily in charge to exchange information with
police.

* Not Everyone Has a Smart Phone: The Directive does not address
specific ways other than social media to get information to a crowd,
even though we pointed out not everyone who goes to demonstrations
carries a smart phone (Section 3.1.1.3). While it continues to refer to
"other conventional outlets" it is not clear what that means.

* Clarify Chain of Command: A confusing chain of command involving the
Incident Commander, the Rapid Response Team and the on-duty precinct
supervisor has not been fixed in Section 4.2.3.

* Be Consistent with Bureau Title: Section 6.3 still refers to the
"Operations Section Chief" instead of the "Assistant Chief of
Operations" which is the proper title as we understand it.

* Define "Physical Harm"/ Add Policy to Protect Demonstrators: Section
6.6 guiding officer behavior clarifies that individual officers can only
act outside a Sergeant's direction when protecting the officer or others
"from physical harm." We still think the level of harm (something more
serious than a paper cut) should be indicated. There is no language here
or in the Policy section directing police to physically protect
demonstrators from external threats or aiding events by directing
traffic.

* Working with Outside Agencies: The guidelines on working with other
agencies (Section 7) does not ensure they will be trained or
identifiable in the same way as PPB officers. Section 7.1.3 requires
officers from other jurisdictions to follow PPB orders... but they are
allowed to rely on their own policies and procedures, rather than the
PPB's. This means we will continue to have inconsistent policing until
outside officers are required to train in and follow PPB's practices.
Nothing specific has been added to Section 7.1.1 about the nature of the
PPB commander briefing officers from other agencies. No effort has been
made at the state level by the City to require all officers to wear
identification on their outermost garment. PCW encourages the PPB to add
a recommendation to the City's legislative agenda making this state law.
While our preference is to keep them away to avoid more militarization
and escalation, the deployment of National Guard troops to support the
PPB in recent weeks means the City also needs to address ways to hold
them accountable.

* Who is on "the Other End"?: The policy does not clarify what is meant
by "ensure the audio confirmation received by identified staff on other
end" when talking about documenting warnings (Section 8.3.3).

* More Language Issues (throughout): While the Bureau talks about
"facilitating" some events, they still use the words "Crowd Control" and
"Crowd Management" throughout the Directive rather than "Crowd
Facilitation" as we suggested.

* Cross-Reference PPB Policy on Labor Actions (not in Directive): PCW
asks once again that the Bureau incorporate and cross-reference parts of
the separate Directive 635.00 on strikes and job actions.
<  https://www.portlandoregon.gov/police/article/526160 >

* Specific Guidance on Weapon Use/Prohibition (add to Directive): PCW
asks again that the guidelines given to officers in 2012 explicitly
saying what kinds of weapons and tactics were to be used in what
situation be integrated into both the Force Directive and the Crowd
Directive. While some guidelines are in the Force Directive, anything
specific to crowd facilitation should be in 635.10. (See
< http://www.pjw.info/PPB_crowd_orders_030112.pdf>)

* Air Unit Use (not in Directive): Even though we frequently see
fixed-wing aircraft over protests which are likely one or both planes in
PPB's Air Unit, there is still no discussion of their role at
demonstrations in this Directive as we suggested. This includes video
recorded from aerial units which might violate ORS 181A.250.

We thank the Bureau again for the opportunity to comment, but hope that
more of our concerns will lead to positive change.
--Dan Handelman, and other members of
Portland Copwatch

*1- unfortunately the international treaty banning the use of chemical
weapons like tear gas carves out an exception for law enforcement
engaging in crowd control.

*2- Officer involved shootings are also not included with the general
Force totals.

homepage: homepage: http://www.portlandcopwatch.org